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CFPB Submits Annual Report To Appropriations Committees
On December 30, the CFPB released an annual report reviewing consumer financial protection activities undertaken by the Bureau during the last fiscal year. The report was presented to the Committees on Appropriations of the U.S. Senate and House of Representatives pursuant to section 1017(e)(4) of the Dodd-Frank Act and covers August 1, 2012 through September 30, 2013. While it does not identify any planned activities, the report reviews the Bureau’s enforcement and fair lending activities to date, and explains the Bureau’s risk-based prioritization process for addressing lending discrimination and allocating enforcement resources. The report also describes the Bureau’s supervisory process, including procedures for conducting examinations and investigations, as well as its complaint process. Finally, the report reviews the proposed and final rules issued to date and provides, as well as administrative issues such as the agency’s spending and organization.
House Democrats Encourage FTC Scrutiny Of Consumer Reporting Agencies' Add-On Products Marketing
On December 18, a group of House Democrats sent a letter urging the FTC to focus on the online marketing of products and services by consumer reporting agencies (CRAs). The lawmakers assert that CRAs “often require consumers to jump through hurdles, presumably in an effort to generate additional revenue.” The lawmakers suggest that certain CRAs’ websites mislead and confuse consumers, particularly with regard to the marketing of “free” consumer products and services that are conditioned upon consumers signing up for “costly add-on services such as ongoing credit monitoring.” The letter identifies the following specific practices for FTC scrutiny: (i) marketing “free” products or services that automatically convert to a monthly subscription if the consumer does not cancel within a trial period; (ii) “prominent” advertising of discount packages without disclosing that the initial small dollar enrollment fee converts into a subscription service; and (iii) requiring consumers to set up accounts before being granted access to their credit score or reports, while “barrag[ing]” consumers with add-on product offerings during the account registration process.
Governor Yellen Addresses Bank Director Removal Over Foreclosure Practices; Lawmakers Press Regulators On Independent Foreclosure Review Details
On November 18, Federal Reserve Chair nominee Janet Yellen responded to a recent inquiry by Senator Elizabeth Warren (D-MA) seeking more details about the Federal Reserve Board’s process for determining whether bank officers or directors should be removed because they directly or indirectly participated in the alleged violations that have resulted in various mortgage servicer settlements. Governor Yellen stated that the Federal Reserve Board “has not, to date, taken any actions removing or prohibiting insiders of the mortgage servicing organizations that were subject to the 2011 and 2012 mortgage servicing enforcement actions for their conduct in connection with servicing or foreclosure activities”, but “[the Federal Reserve Board is], however, continuing to investigate whether such removal or prohibition actions are appropriate.” In addition, on November 15, Senator Warren, joined by Representatives Elijah Cummings (D-MD) and Maxine Waters (D-CA), again pressed the Federal Reserve Board and the OCC to release a public report on the Independent Foreclosure Review process. This latest request follows other similar requests made earlier this year.
Congressional Democrats Seek Information on Student Debit Cards; CFPB Plans "Banking on Campus" Event
On September 26, several Democratic Members of Congress, including Assistant Senate Majority Leader Dick Durbin (D-IL), House Financial Services Ranking Member Maxine Waters (D-CA), House Education Committee Ranking Member George Miller (D-CA), and Senate Banking Committee members Sherrod Brown (D-OH) and Elizabeth Warren (D-MA), sent letters to the CEOs of numerous financial institutions asking that the institutions explain their student debit card deals with colleges and universities. The letters ask each financial institution for: (i) a list of colleges/universities where the institution has an agreement to enroll students in any deposit account or prepaid debit account and where the marketing, materials or financial instruments used to access such accounts are co-branded with a college or university logo, symbol, mascot or name; (ii) the number of accounts opened through agreements at each institution of higher education listed from the previous question, and the total fees collected from such accounts over the last three academic years; (iii) the total value of monetary and non-monetary remuneration provided to such institutions of higher education for the marketing of these products over each of the last three academic years; and (iv) whether any of the institution’s employees or agents have ever provided any monetary or non-monetary gift to an employee or agent of an institution of higher education, including meals, entertainment, gift cards, or compensation for an advisory committee above a $10 value as part of the institution’s marketing strategy over the past three academic years.
Earlier this year the CFPB initiated a review of campus affinity relationships, and on Monday, September 30, the CFPB is hosting an event regarding financial products offered at colleges.
Senator Expands Data Broker Investigation
On September 25, Senator Jay Rockefeller (D-WV) released letters he recently sent to 12 popular “personal finance, health, and family-focused websites” for assistance in an ongoing Senate Commerce Committee investigation into the way data brokers collect and share personal information. According to Senator Rockefeller, the letters were sent in part because “several data brokers have refused to disclose to the Committee specific sources of consumer data, preventing the Committee from fully understanding how the industry operates.” Senator Rockefeller began this investigation in October 2012 with letters to a number of data brokers. In connection with this latest round of letters, the Senator states that “hundreds of thousands of websites that gather information directly from consumers may be a source of consumer information for data brokers,” and that he believes some websites’ privacy policies “leave room for sharing a consumer’s information with data brokers or other third parties.” The Senate investigation parallels an investigation by members of the House of Representatives and the FTC’s ongoing activity with regard to data brokers.
House Passes Insurance Licensing Bill
On September 10, the U.S. House of Representatives passed legislation, H.R. 1155, which would amend the Gramm-Leach-Bliley Act to allow for multistate licensing of insurance producers through the establishment of the National Association of Registered Agents and Brokers (NARAB). The bill would authorize NARAB to: (i) establish membership criteria, (ii) deny membership to a state-licensed insurance producer on the basis of the criminal history information obtained, or where the producer has been subject to certain disciplinary action, (iii) receive and investigate consumer complaints and refer any such complaint to the state insurance regulator, and (iv) coordinate with state insurance regulators to establish a central clearinghouse and a national database for the collection of regulatory information concerning the activities of insurance producers. The bill would retain states' regulatory authority over: (i) licensing, continuing education, and other qualification requirements of non-NARAB producers, (ii) resident or nonresident producer appointment requirements, (iii) supervision and disciplining of such producers, and (iv) setting of licensing fees for insurance producers. States also would remain responsible for consumer protection and market conduct. The bill passed the House last Congress, but never advanced in the Senate. Earlier this year, the Senate Banking Committee reported a corresponding bill, which is awaiting consideration by the full Senate.
CFPB Responds to Inquiry by Members of Congress on Indirect Auto Lending Guidance
On August 2, the CFPB responded to a letter submitted by 35 republican members of Congress who are concerned about the fair lending guidance the CFPB issued to indirect auto lenders earlier this year. The bulletin, issued in March, confirmed the CFPB’s position that indirect auto finance companies are “creditors” subject to the fair lending requirements of ECOA and Regulation B and specifically addressed the risk of discrimination allegedly caused by discretionary dealer participation and compensation policies, concluding that indirect auto finance companies may be liable under the legal theories of both disparate treatment and disparate impact when pricing disparities on a prohibited basis exist within their portfolios. The members criticized the CFPB’s lack of transparency and accountability in issuing the guidance “without a public hearing, without public comment, and without releasing the data, methodology, or analysis it relied upon to support such an important change in policy” and requested that the CFPB provide full details of the statistical disparate impact methodology used to support the bulletin’s directives.
The CFPB’s response letter affirms its indirect auto lending guidance, stating that the Bureau perceives frequent lack of fair lending compliance programs associated with this type of consumer lending despite Bureau’s assertion that ECOA applies to all credit transactions. The CFPB further asserts that the notice-and-comment rulemaking process was not necessary for the bulletin, because the Administrative Procedure Act — which sets out the basic principles that apply to regulatory activity by federal agencies — does not require notice and comment for “general statements of policy, non-binding information guidelines, or interpretive memoranda.” The letter also explains that because data about race, ethnicity, and gender is not typically collected in auto finance transactions, the CFPB employs a proxy methodology using surname and geographic location to identify potential pricing disparities affecting protected classes. In support of its approach, the CFPB asserts that use of proxies for unavailable data is generally accepted and maintains that disparities will be considered “in view of all other evidence,” including the finance companies’ own analysis. The CFPB emphasized that “each supervisory examination or enforcement investigation is based on the particular facts presented” and that the CFPB “typically look[s] to whether there is a statistically significant basis point disparity in dealer markups received by the prohibited basis group.” Lastly, the letter reiterates the CFPB’s ongoing coordination with other federal agencies to ensure that fair lending supervision and enforcement is “consistent, efficient, and effective.”
For additional information about federal authorities’ approach to fair lending in indirect auto finance, see our report on a recent Federal Reserve Board-sponsored webinar entitled “Indirect Auto Lending – Fair Lending Considerations,” in which presenters from the CFPB, FRB, and DOJ provided a perspective on the examination and enforcement activities of their respective organizations.
Housing Finance Reform Bills Advance in Congress
On July 24, the House Financial Services Committee approved a comprehensive housing finance reform bill, outlined recently by Committee Chairman Jeb Hensarling (R-TX). The Chairman has indicated that the bill could move to the House floor for consideration by the full body shortly after the August recess and that in the interim he will work to explain the bill to his conference and build support. The House bill differs in several substantial ways from a Senate proposal. For instance, the House bill provides for an overhaul of the Federal Housing Administration while the Senate Banking Committee intends to address the FHA separately from, and in advance of, the Senate’s broader housing finance reform bill. The Senate Banking Committee held a hearing this week on its FHA legislation and intends to amend and vote on the bill next week.
Senate Confirms Richard Cordray as CFPB Director
This evening, the U.S. Senate voted 66 to 34 to confirm Richard Cordray as CFPB Director, for a five year term. As is well known, Mr. Corday had been serving in that position as a recess appointee and his recess appointment was set to expire at the end of this year. Moreover, his recess appointment has been the subject of a litigation challenge, and the issue of the validity of recess appointments such as his may have been resolved by the U.S. Supreme Court in the next term. The Senate vote on Mr. Cordray’s nomination came after several days of Senate debate over the Senate’s confirmation process and filibuster rules that resulted in a path forward on up or down votes on several presidential nominations. It ended a two-year stalemate between Republicans and Democrats over the Mr. Cordray’s nomination, based on a fundamental disagreement regarding the structure and oversight of the CFPB. For example, Republican members of both the Senate and the House have called for the CFPB’s director-led structure to be replaced by a commission, and for the CFPB’s budget to be subject to the annual congressional appropriations process.
There may be movement on one potential change to oversight of the CFPB. Concurrent with the agreement to vote on Mr. Cordray’s nomination, Senator Portman (R-OH) announced a bill that would establish an office of inspector general for the CFPB. Currently the Bureau shares an inspector general with the Federal Reserve Board. Also, following the confirmation vote, the Chairman of the House Financial Services Committee immediately dropped his objection to Mr. Cordray testifying before that committee and stated that the committee will call him to testify on the CFPB’s annual report as soon as practicable.
The confirmation of Mr. Cordray, and the expected confirmation of new presidential nominees to the National Labor Relations Board, may impact the Supreme Court’s pending review of presidential recess appointment power, a case we have written about on several other occasions, including most recently when the Supreme Court agreed to hear the case.
Other nominations of interest remain pending. For example, the President has nominated Representative Mel Watt (D-NC) to serve as FHFA Director. The Senate Banking Committee was set to vote on that nomination this morning, but postponed the vote until Thursday.
House Chairman Outlines Housing Reform Bill
On July 11, House Financial Services Committee Chairman Jeb Hensarling (R-TX) outlined legislation set to be unveiled next week that is designed to reform the housing finance market. The centerpiece of the comprehensive bill is a plan to end the government’s conservatorship of Fannie Mae and Freddie Mac over a five year period, move those entities into receivership, and liquidate them. The bill would aim to replace the government-backed mortgage finance companies with a secondary market funded only by private capital, supported by a non-government, not-for-profit mortgage market utility regulated by the FHFA. The legislation also will include numerous provisions designed to “break down barriers to private investment capital,” including by delaying implementation of Basel III capital rules for community financial institutions and incorporating portions of a bipartisan proposal to change the calculation of loan points and fees in determining qualified mortgage eligibility. Finally, the bill would separate the FHA from HUD, limit the FHA’s mission to only serving first-time homebuyers and borrowers below 115% of area median income (AMI) nationwide or 150% of AMI in high-cost areas, lower the minimum and maximum FHA loan limits, and increase FHA down payment requirements, among other changes to the FHA program.